Cusack v. Green
| Decision Date | 03 November 1952 |
| Docket Number | No. 21778,21778 |
| Citation | 252 S.W.2d 633 |
| Parties | CUSACK v. GREEN et al. |
| Court | Missouri Court of Appeals |
Claude L. Schenck, Kansas City, for appellants.
Cortner & Beals and Dwight Beals, Kansas City, for respondent.
Defendants appealed to the Circuit Court from a judgment of the magistrate for restitution only and costs in an action for forcible entry and unlawful detainer. No appeal bond was filed in the magistrate's court. In the circuit court plaintiff filed motion to dismiss the appeal for failure to file appeal bond, which motion was sustained and the costs of the appeal assessed against defendants. Defendants now appeal to this court from the order dismissing the appeal.
Defendants' first contention is that the statutes do not contemplate the requirement of an appeal bond in an appeal from a judgment of the magistrate in such a case when only possession and costs have been adjudged against defandants, and when failure to furnish same would not have delayed the plaintiff.
Section 534.390 RSMo 1949, V.A.M.S. affords and appeal to any party aggrieved by the judgment of a magistrate in any case of forcible entry and detainer. Section 534.380 requires all proceedings to be stayed in the magistrate's court in such cases 'when an appeal is perfected'. Section 534.400 reads: 'No appeal shall be allowed in any case, unless notice thereof be filed by the appellant, his agent or attorney, as in other civil cases before magistrates, and sufficient recognizance be filed with the magistrate within ten days after the rendition of the judgment.' Section 534.420 provides, in effect, that when the defendant is the appellant, an appeal bond must be furnished in a sum sufficient to cover damages, rents and profits that may be adjudged against him, conditioned that he will prosecute his appeal with effect and without delay, and to cover any waste or damage to the premises, and that the appellant will abide the final judgment in the case. Section 534.440 provides a form for such a bond by the appellant. Section 534.490 reads: 'No cause removed into the circuit court by appeal shall be dismissed for any informality, insufficiency or imperfection in the notice or recognizance, if a sufficient notice or recognizance be filed within such time as shall not delay the other party.' Section 534.550 requires the circuit court in such a case on an appeal from a magistrate to proceed to trial and determine the same anew without regard to any error, defect or informality in the proceedings of the magistrate. Section 534.500 authorizes the circuit court, when it shall appear that the amount of security in a recognizance in such a case is insufficient or for any other substantial defect, to order a new recognizance to be filed within such time as shall not delay the trial.
The foregoing statutes plainly rebut the defendants' first contention. In affording the defendant a right of appeal in cases of forcible entry and unlawful detainer, the statutes prescribe the requirements therefor, an essential one of which is that he furnish an appeal bond of the nature and in the general form provided. This is not a case of informality, insufficiency or imperfection, but a failure to furnish any appeal bond at all. This was ample ground for dismissal of the appeal by the circuit court.
Defendants further contend that the order or judgment of dismissal complained of was rendered by the Assignment Division of the Circuit Court of Jackson County, Missouri, at Kansas City, presided over by the regular judge of Division 9 of the Circuit Court of that county; that there had been no assignment of the cause to Division 9, and that the judge had no authority or jurisdiction as judge of the Assignment Division to render a final judgment in the cause. They assert that the Assignment Division was created by the court en banc to enable the court to dispose of its business, hear all summary applications and make up the issues in pending causes.
The transcript, on its title page, designates the trial court as 'In the Circuit Court of Jackson County, Missouri, at Kansas City, Division No. 9'. The place of signature for the judge's certificate to...
To continue reading
Request your trial
-
State ex rel. Ballew v. Hawkins
...and established practice of which the attorneys should have taken notice. We should not presume lack of jurisdiction. Cusack v. Green, Mo.App., 252 S.W.2d 633, 625; Hendershot v. Minich, Mo., 297 S.W.2d 403, 410; Gomez v. Gomez, Mo., 336 S.W.2d 656(6). This presents the problem of the later......
-
Davis v. Davis (In re Davis)
...Const. Co., 639 S.W.2d 286, 288, n. 4 (Mo.App.1982) ; In re Marriage of Dickey, 553 S.W.2d 538, 540 (Mo.App.1977) ; and Cusack v. Green, 252 S.W.2d 633, 635 (Mo.App.1952). We agree that this case-law-developed rule affords Husband the option to prove the existence of local court rule 68 by ......
-
Crossgates Home Ass'n v. Blomquist
...Trust Co. v. Bowman, 322 Mo. 654, 15 S.W.2d 842 (1929); Steinbaum v. Wallace, 237 Mo.App. 841, 176 S.W.2d 683 (1944); and Cusack v. Green, 252 S.W.2d 633 (Mo.App.1952). Since the judgment of contempt is affirmed, it is unnecessary to rule on respondent's motion to dismiss the Judgment affir......
-
Marriage of Dickey, In re
...The text of the rule was not in evidence and we may not take judicial notice of the rules of the circuit court. Cusack v. Green, 252 S.W.2d 633, 635(2) (Mo.App.1952). The procedures adopted by the wife can be understood only by reference to the general purport of that rule.3 Many of the cas......